BOARD DATE: 19 June 2012
DOCKET NUMBER: AR20120000602
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests an upgrade of his discharge under other than honorable conditions (UOTHC) to general.
2. He states it has been 31 years and he believes it would be appropriate to upgrade his discharge. He was told it would be upgraded 6 months after he was discharged. He would like to finish his education and receive medical benefits.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 11 December 1979. He completed training and was awarded military occupational specialty 71N (Traffic Management Coordinator).
3. He was absent without leave (AWOL) from 22 July to 20 August 1982 and he was dropped from the rolls of the Army on 21 August 1982. He was returned to military control on 23 July 1985.
4. The applicant's discharge processing documentation is not available. However, his DD Form 214 shows he was administratively discharged for the good of the service in lieu of trial by court-martial on 6 September 1985 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations Enlisted Personnel). He was issued a discharge UOTHC. He completed 2 years, 8 months, and 25 days of total active service.
5. His application to the Army Discharge Review Board, dated 30 April 2003, is recorded in the Army Review Board Case Tracking System as "unworkable can't be processed."
6. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.
a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.
b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The specific facts and circumstances surrounding his discharge are not available. His DD Form 214 shows he was administratively discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.
2. The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable laws and regulations unless the applicant can provide evidence to overcome that presumption.
3. The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency. Granting veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X______ __X___ ___ __X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
__________ X______________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20100015867
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ABCMR Record of Proceedings (cont) AR20120000602
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